{1} Defendant Richard Johnson appeals his conviction of criminal damage to property on two grounds: (1) that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications by two witnesses and (2) that the trial court impermissibly sentenced him to thirty days of jail time for his failure to admit guilt at sentencing. We hold that the trial court improperly denied Defendant’s suppression motion. We reverse Defendant’s conviction and remand for a new trial. We do not address the merits of the sentencing issue.
I. BACKGROUND
{2} During the early morning of April 30, 2000, while it was dark, Arturo Montano noticed a car stopped in front of his house with two or three people arguing in it; the car then moved farther up the street and parked. The area in front of Montano’s house where the car initially stopped was well lit; the area where the car finally parked was not lit as well. Two individuals (perpetrators) got out of the car; Montano saw them shaking spray cans. He returned to his house and alerted his roommate, Michael Flores, that there was some activity going on; Flores joined Montano outside to observe the activity. They saw the two perpetrators across the street and down a couple of houses by the car of a neighbor, Selena Garcia. One perpetrator was standing by a fence, watching while the other was spray-painting Garcia’s car; the two perpetrators then exchanged places. According to Montano, the perpetrators were also spray-painting another vehicle next to Garcia’s car; he thought the other vehicle might have been a truck. Flores was between 60 and 75 to 80 yards away from the perpetrators; Garcia’s car was in an area well lit by streetlights. Montano could see the perpetrators “[pjretty good”; Flores indicated he had no trouble seeing what was going on. He watched the two perpetrators spray-painting for fifteen to twenty minutes; Montano watched for up to forty-five minutes.
{3} At some point, Montano walked within 10 feet of the perpetrators’ car so that he could get the license plate number. It is unclear how far away that ear was from Garcia’s car, but it was “pretty dark” in that area. After getting the license plate number, Montano called the police from a pay phone. At some point, he wrote the number down on a piece of paper as 37566N. The
{4} That morning, Garcia called the police after finding her car vandalized. A police officer was dispatched to her home. At the request of Garcia, the officer later returned to speak for the first time with the two witnesses, Montano and Flores. Montano gave the officer the license plate number he had written down. Flores told the officer that one of the perpetrators was African-American, between 6 feet and 6 feet 2 inches, with a slim build, and wearing a T-shirt with “an emblem on it that stood out big time.” Flores was unable to describe the second perpetrator, whom he had heard but never saw. There is no indication in the record that on April 30, Montano gave the officer any description of either perpetrator.
{5} On May 10, at the request of the police, Montano and Flores went to a business parking lot and were asked to identify the vehicle they had observed on April 30. They were driven around the parking lot in a police car. There were five to eight other vehicles in the lot; only one was brown or beige. Flores immediately spotted a car that was “very similar” to the one he remembered from April 30. It took Montano “a while ... to figure it out”; he did so when he realized the license plate matched in part the plate number he had written down. He also noticed the car had the square lights he remembered from April 30. The actual number on the license plate was 375GGK; the ear was a Pontiac LE owned by Defendant.
{6} Montano and Flores then sat in a police car across the street from Defendant’s place of business while police conducted a showup. In the showup, police told the witnesses that an officer was going to bring out an individual; the witnesses were asked to see if they recognized him. According to Flores, the car was about 400 or 500 yards away from the individual. The record does not specify what the witnesses said to the police at the showup; but, evidently, both witnesses indicated they recognized the individual from the scene of the crime.
{7} Defendant subsequently moved to suppress the identification of him made by Montano and Flores. At the motion hearing, Montano testified that he recognized Defendant on May 10 because of his features; his bald head and his ears looked “pretty close” to that of one of the perpetrators Montano saw on April 30. Montano also testified that he did not know whether he could remember the second perpetrator, whom Montano described only as “the white guy or the light Hispanic.” Flores, likewise, was unable to describe the second perpetrator. Following the hearing, the trial court denied the motion, based on the totality of the circumstances.
{8} At trial, Flores testified that he observed one perpetrator “very well” on April 30 and that he did not get a good look at the other perpetrator because Flores “was concentrating on the one gentleman that was right there ... in the street that was very clearly visible.” Flores further testified that although he was a good distance away from Defendant’s place of business during the showup on May 10, he could see people “very clearly.” Flores said he had “[n]ot a question at all” in his mind that it was Defendant he saw on April 30. Montano, other than to say he was able to give the police “somewhat of a description” of one perpetrator, gave no trial testimony as to what he told the police on April 30 about what the perpetrators looked like; he did testify that “[o]ne of them was more distinct” and that one looked African-American, while the other looked like a “light Hispanic or white guy.” Montano said he was “100[jpercent sure” that the car in the photographs submitted as evidence at trial was the same car he saw on April 30.
II. DISCUSSION
{9} Before proceeding with our analysis, we briefly address two matters: whether the trial court mistakenly analyzed the showup identification as a credibility question for the jury, as Defendant asserts, and whether Defendant
{10} The trial court’s ruling included the statement “I think it’s a matter of credibility of evidence, to the jury, so the motion to suppress is denied.” Defendant presents this as evidence of the trial court’s refusal to evaluate for itself the reliability of the identification, as required under the totality of the circumstances test. We disagree. The court clearly stated that its decision was based on the totality of the circumstances. Furthermore, once the court made the decision to admit the testimony, the identification was indeed a matter of credibility for the jury. See State v. Cheadle,
{11} Defendant’s counsel suggested at oral argument that a motion to suppress identification of the car was “lumped in together” with the motion to suppress identification of Defendant. We do not interpret the motion submitted to the trial court in such a fashion. Defendant specifically moved the trial court to “[s]uppress the identification of Mr. Johnson.” Our opinion, therefore, concerns the suppression of that identification, not of the identification of the car.
A. Standard of Review
{12} The parties disagree as to the standard of review. Defendant, without citing authority, urges de novo review in the reply brief. The State, citing State v. Maes,
B. Identification
1. Out-of-Court Identification
{13} In reviewing the admissibility of showup identification, we analyze whether the procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and, if so, whether the identification is nonetheless reliable under the totality of the circumstances. See Patterson v. LeMaster,
{14} Showup identifications are inherently suggestive, and their use “should be avoided.” Patterson,
{15} Counsel suggests in the brief in chief that other states have “focused on the need to show exigent circumstances as a matter of state constitutional law.” To the extent that she requests we establish an exigency rule in this case, we find that the state constitutional issue was not preserved below. See State v. Gomez,
{16} As indicated above, showup identifications are inherently suggestive. Patterson,
{17} There is no doubt that the witnesses had the opportunity to view the perpetrators for an appreciable period of time: Flores watched the activity for fifteen to twenty minutes; Montano, for up to forty-five minutes. Although there was testimony that the area around the perpetrators’ ear was “pretty dark,” the area around Garcia’s car, which the perpetrators were spray-painting, was well lit. We are concerned, however, about the distance between the witnesses and the perpetrators and about the absence of evidence that either witness saw the face of the perpetrator they identified. Flores was between 60 and 75 to 80 yards away from Garcia’s car. Montano does not clearly testify as to his distance from the perpetrators; we presume from the conversation that took place between Montano and Flores about phoning the police that Montano was standing at least part of the time with Flores while watching the spray-painting. Montano may have had a closer view of the perpetrators when they initially drove up in front of his house; the testimony, however, indicates
{18} The distance and lack of facial identity make this case very different from others in which our Courts concluded that the witnesses had opportunity to view the perpetrators. See State v. Jacobs,
{19} We find the circumstances here to be more like those in Padilla and Patterson. In Padilla, the witness observed the criminal activity from across the street and did not testify as to seeing the 'perpetrator’s face. Padilla,
{20} There is no evidence that the witnesses’ degree of attention was impaired during the period of time they observed the perpetrators. The second factor, therefore, weighs toward reliability.
{21} There is, however, no indication of reliability from the third factor, accuracy of the pre-identification description. Flores testified at the motion hearing that he described one perpetrator to the police as African-American, 6 feet to 6 feet 2 inches tall, with a slim build, and wearing a T-shirt with “an emblem on it that stood out big time.” Flores did not suggest what the emblem looked like, so there is no way of assessing whether it made the T-shirt an uncommon item of clothing or not. Defendant is African-American, so Flores accurately described his race. While the trial court and jury had the opportunity to assess Defendant’s height and build, there is nothing in the record indicating Defendant’s height or build. Even if we assumed Defendant to be 6 feet to 6 feet 2 inches and slim, it would not be enough to indicate reliability. See Patterson,
{22} Montano provided details of features at the motion hearing, when he testified that Defendant looked like one of the perpetrators Montano saw on April 30; he testified that he recognized Defendant on May 10 by his bald head and his ears. Montano also stated that the perpetrator was wearing a windbreaker with a medical emblem on it, although he was not sure if it was indeed a medical emblem. However, there is no evidence that any of these descriptions were given to the police before the showup. Montano merely stated at trial that he gave the police “somewhat of a description.” Montano did testify that he gave the police the license plate number of the car he saw on April 30;
{23} The fourth factor is the level of the witnesses’ certainty of identification. As we stated above, we are unable to assess from the record exactly what either witness told the police at the showup itself. However, Flores expressed no doubt at the motion hearing that he recognized the individual at the showup as the one he saw on April 30. In Patterson, our Supreme Court noted that when the witness finally identified the perpetrator at the showup, he did so on the basis of common items of clothing worn by the perpetrator, rather than any distinctive physical characteristics, which the witnesses never had the opportunity to view. Patterson,
{24} Montano provided scant testimony on the certainty of his identification. When asked by defense counsel at the motion hearing if there was any question in his mind as to whether the individual the police showed him on May 10 was the same individual he saw on April 30, Montano did not directly answer the question. His only response was that he was wondering about “the other guy, the white guy or the light Hispanic.” Montano testified that the African-American was “[m]ore distinctive,” but we are unable to gauge the certainty of the showup identification from this remark or from any of Montano’s other testimony. This factor does not weigh in favor of the reliability of Montano’s identification; it weighs slightly in favor of Flores’s identification.
{25} The length of time between the crime and the identification, the fifth factor, is ten days and unlike the length of time in other showup cases. See, e.g., Patterson,
{26} Having considered each of the factors, we determine that the showup identification lacked the indicia of reliability necessary to overcome the suggestiveness of the identification procedure. We next turn to the in-court identification.
2. In-Court Identification
{27} In-court identification is only admissible if it is independent of and not tainted by extrajudicial identification. Oleadle,
{28} We hold that the trial court incorrectly denied Defendant’s motion to suppress the out-of-court and in-court identifications of Defendant. Without the identifications, we cannot say that the State was able to prove beyond a reasonable doubt that Defendant intentionally damaged the property of another. See State v. Esguerra,
III. CONCLUSION
{29} We reverse Defendant’s conviction and remand for a new trial consistent with this opinion.
{30} IT IS SO ORDERED.